Patna High Court
Priyanka @ Priyanka YadavversusOm Prakash Yadav
- Decided
- Disposal
- DISMISSED
Holding
The appeal is dismissed; the appellant must seek relief by filing an application under Order 9 Rule 13 CPC and Section 5 of the Limitation Act.
Summary
The appellant, Priyanka Yadav, appealed an ex‑parte divorce decree granted to her husband under Section 19(1) of the Family Courts Act, alleging that the suit notice was sent to a wrong address and she was never served. The trial court had struck off the appellant’s defence for non‑compliance with an order to deposit a demand draft of Rs.2,65,000, which was later produced by the respondent’s counsel. The High Court recalled the strike‑off order after receipt of the demand draft but held that the appeal could not directly set aside the ex‑parte decree. It directed the appellant to file an application under Order 9 Rule 13 of the CPC and Section 5 of the Limitation Act within three weeks to challenge the service of summons. The court noted that if the limitation application is allowed, the trial court may examine the service issue and pass appropriate relief. Ultimately, the appeal was dismissed as it lacked merit.
Issues considered
- Whether the ex‑parte divorce decree can be set aside on the ground of improper service of summons.
- Whether the appellate court can entertain the challenge to the decree or must the matter be pursued under Order 9 Rule 13 CPC.
- Whether the limitation period under Section 5 of the Limitation Act bars the appellant’s challenge.
Legislation cited
- Code of Civil Procedure — s. Order 9 Rule 13
- Family Courts Act, 1984 — s. 19(1)
- Hindu Marriage Act — s. 13(1)(a)
- Limitation Act — s. 5
Subjects
- ex parte decree
- service of summons
- divorce
- Hindu Marriage Act
- Family Courts Act
- Limitation Act
- Order 9 Rule 13 CPC
- appeal
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.431 of 2021
======================================================
Priyanka @ Priyanka Yadav, Wife of Om Prakash Yadav, Daughter of Sri
Niwash Singh Yadav @ Sri Nivas, Village- Saryankota, P.S.- Narhi, Distt-
Baliya, UP.
... ... Appellant/s
Versus
Om Prakash Yadav, Son of Mahendra Yadav Resident of Village- Garubandh,
P.O.- Basantpur, P.S.- Itarhi, Distt- Buxar.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Dharmesh Kumar Shrivastava, Advocate
For the Respondent/s : Mr. Amit Kumar Pandey, Advocate
Mr. Krishna Kant Pandey, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI
and
HONOURABLE MR. JUSTICE RANA VIKRAM SINGH
ORAL ORDER
(Per: HONOURABLE MR. JUSTICE BIBEK CHAUDHURI)
24 23-06-2026 1. This is an appeal under Section 19 (1) of the Family
Courts Act, 1984 challenging an Ex parte judgment and decree
passed in favour of the plaintiff/respondent against the
defendant/appellant.
2. At the outset, we like to record that by virtue of an
order dated 2nd April, 2026, we passed an order striking off the
defence of the respondent for his non-compliance of Court’s
order. It is necessary to mention that the respondent was
directed by an order dated 15.01.2026 and also by a subsequent
order to deposit a Demand Draft of Rs. 2,65,000/- in the name
of the wife.
Patna High Court MA No.431 of 2021(24) dt.23-06-2026
2/4
3. Mr. Amit Kumar Pandey, learned Advocate appears
on behalf of the respondent along with a demand draft of Rs.
2,65,000/- in the name of his wife.
4. The learned Advocate for the appellant submits that
he accepts the demand draft No. 670789 on behalf of the
appellant-wife and the same shall be paid to the wife in due
course.
5. In view of such payment of demand draft, we recall
the order of striking off defence of the respondent in the instant
appeal.
6. It is submitted by learned Advocate for the
appellant that the marriage was solemnized with the respondent
on 31.05.2017, subsequently she returned to her parents’ home
(Maayke) on 30.07.2017. The husband filed a suit for divorce
which was registered as Divorce Case No. 272 of 2018 on
26.10.2018 on the ground of cruelty as envisaged in Section 13
(1) (a) of the Hindu Marriage Act.
7. It is contended by the appellant that
plaintiff/respondent sent the notice of the suit to a wrong
address and showing wrong service of notice, he managed to get
the decree of divorce against his wife ex parte. The appellant
did not get any opportunity to contest the case in the Trial Court.
Patna High Court MA No.431 of 2021(24) dt.23-06-2026
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8. It is needless to say that an ex-parte order may be
set aside against the defendant, if the defendant is able to show
that summon was not duly served or that he was prevented by
any sufficient cause from appearing where the suit was called
for hearing. In the instant appeal the only substantial ground is
that the summon was not served upon the appellant.
9. Considering such aspect of the matter, we are of the
view that the Court of appeal is not within its scope to consider
as to whether summon was procured and used fraudulently to
get the ex-party decree of divorce by the husband. This is well
within the domain of Order 9 Rule 13 of the CPC. Therefore,
the instant appeal is disposed off directing and given liberty to
the appellant to file an application under Order 9 Rule 13 of the
CPC within three weeks from the date of this order along with
an application under Section 5 of the Limitation Act and if such
application is filed, the learned Trial Court is at liberty to
dispose off the application under Section 5 of the Limitation Act
liberally however, without Sued over any observation passed by
this Court in the judgment.
10. If the application under Section 5 of the
Limitation Act is allowed, the learned Trial Judge shall examine
as to whether notice of the suit was properly served upon the
Patna High Court MA No.431 of 2021(24) dt.23-06-2026
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defendant/respondent/appellant of the instant appeal or not and
to pass appropriate order in accordance with law.
11. As we did not find merit in the instant appeal, with
the following observations, the appeal is dismissed.
(Bibek Chaudhuri, J)
(Rana Vikram Singh, J)
Saurabh.kr/
Prakash-
U
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